question about copyright

does anyone know if it’s copyright infringement to reprint/include an academic essay in your ‘zine (written in 1988)? i need to reference the whole thing to have what i’m saying make sense. i could also just mention it and paraphrase, but i feel like its impact won’t be as strong.

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There's really two questions here: 1) Is this copyright infringement; and 2) Does it matter?

The answer to the first question is a great big YES. Although I'm not sure where the essay was published, the lifespan for copyright in the US is death + 70 years (a completely insane, unfair, anti-democratic length of time, but that's how it goes), and the law is similar in most other countries. So you can assume that something published in 1988 is almost without a doubt definitely still under copyright (unless you can find definite proof that it's been released into the public domain by the author or the publisher).

In copyright law there's something called "fair use" which refers to the ways in which you're legally allowed to use content created by others as part of your own work. Unfortunately there are no clear cut rules about fair use - it's something that's constantly being renegotiated and redefined in court cases all the time. When it comes to academic writing, there are some pretty clearly established precedents for what constitutes fair use, but this is kind of the result of a compromise between two fiercely opposed attitudes.

Academic publishers tend to be very overzealous about protecting what they publish (because their entire business model is based around gouging people with exorbitant access fees), but there's also a long tradition of openness and intellectual sharing within the academic community. So to grossly oversimplify: it's largely a situation where writers/researchers/scholars often want their work to be free and openly shared, but the organizations who publish their work want to restrict it as much as possible. The way this balances out is that publishers have come to accept that the things they publish might be copied and distributed for free in an educational setting (I've never heard of a teacher being sued for handing out photocopies to their class), but they'll crack down on any commercial uses or anything that's outside "the academy" (that's you).

Fortunately you have an option available between including the entire article and just paraphrasing it, and that's quotation. This is something that has a long history of being protected as fair use, but only if it's done correctly. The key is to make sure you don't quote too much (no more than 2 or 3 successive paragraphs, and only a fraction of the total article -- how small of a fraction is hard to say, but if it's more than a 1/5 I'd say definitely try scaling back), and also that you provide your own commentary on what's being quoted - which it sounds like you're planning to do (just make sure there's more of your own writing than there is quotation). If you think you can convey what you need to convey using a mix of paraphrasing and quotation, I'd recommend doing that.

The second question - does it matter? - is much harder to answer. There's a pretty damn good chance that whatever big academic journal published this essay two and a half decades ago isn't going to ever find your zine. Even if they do, you're not printing off millions of these things are selling them for a high profit margin - you're still small potatoes - so probably the worst that would happen is you'd be slapped with a cease and desist letter, and you'd have to stop selling the zine. So I'd say that your legal risk is very very low. There's a theoretical possibility that you'd get sued, but you're probably more likely to win the lottery.

There's also an ethical component to consider. Someone put a lot of effort into writing that essay (presumably someone you respect), and they may not want it circulating around for free. If you're really dead-set on reprinting the whole thing, you can always try to contact the author. It's possible they have a deal worked out where they retain re-printing rights over the essay and might give you permission to use it in full. They might also just not get back to you, or they might get back to you only to tell you that the publisher owns all the rights (and good luck getting permission from them).

hey, thanks a lot tim! i looked up the writer up, and it seems like she's charging $1 per copy of the article reprinted. i doubt that she would make an exception for a small run print zine, so i may just do it anyway, or just print half of it, or something.